January 3, 2017

Yes, I’m just getting caught up on articles that got published between Christmas and New Year’s, which is why I’m linking to another Megan McArdle article. This one is on the Democratic party’s “festival of wrongness” delusions about hacking the nomination to replace Antonin Scalia on the US Supreme Court:

You may be a bit confused. Republicans hold the majority in this Senate. They will also control the next Senate. How are Democrats supposed to bring the thing to the floor for a vote, much less get enough votes to actually confirm him?

That’s a very good question! The answer some progressives have come up with is that there will be a nanosecond gap between when the outgoing senators leave office, and the new ones are sworn in. During that gap, there will be more Democrats left than Republicans. So the idea is to call that smaller body into session, vote on the nomination, and voila! — a new Supreme Court justice. Alternatively, President Obama could use that gap to make a recess appointment.

The first idea started on Daily Kos, where I initially saw it. I didn’t pay it overmuch attention, as my second law of politics is that “At any given time, someone is suggesting something completely insane.” Usually these ideas go nowhere. This one, however, has gotten a bit of traction; the idea of a nanosecond nomination vote has shown up at the Princeton Election Consortium blog, and endorsements of a recess appointment have appeared in the New Republic and New York magazine.

It’s hard to know where to start with this festival of wrongness. The idea behind the nanosecond nomination seems to be that there are two discrete Senates, the old and the new, with a definite gap between them; yet that somehow, though neither the old nor the new Senate exists, there are senators, who can hold a vote on something — a sort of quantum Senate that pops into and out of existence depending on the needs of the Democratic Party.

The legal grounds for a recess appointment are even weaker, because in 2014 the Supreme Court ruled that recess appointments require at least a three-day gap — not three femtoseconds — between sessions to be valid. Even if that were not the case, Jonathan Adler argues that the new Republican Senate could adjourn sine die, ending the recess appointment a few weeks after it was made. Since Garland would have to vacate his appellate court seat, all Democrats would succeed in doing is opening up another judicial appointment for Trump.

But this is almost quibbling compared with the deeper problem: Even if these moves could work, they wouldn’t work. The people proposing these ideas seem to imagine that they are making a movie about politics, rather than actually doing politics. The hero’s quest is to get a liberal supreme court, but they are stymied until — third act miracle! A daring procedural caper! The gavel slams down on Merrick Garland’s “Aye” vote … cut to him taking his Supreme Court seat … fade to black as the audience cheers. In the real world, of course, there’s a sequel, called “Tomorrow.” And what do the Republicans do then? The answer, alas, is not “stand around shaking their fists at fate, while the moderates among them offer a handshake across the aisle and a rueful ‘You got us this time, guys.’”